OPINION
By BARNES,' J.The above entitled cause is now being determined on appellee’s motion to dismiss defendant’s appeal for the reason that defendant failed to file brief within the time prescribed under the statute.
The oral argument and briefs also present the cause on the merits with the stipulation that in the event the motion should be overruled the case can then be finally determined without further delay.
It is uncontroverted that defendant’s brief was not filed within the time prescribed under §13459-3 GC. This exact question has been previously determined by our court in a Miami County case decided Decemeber 26, 1939. The title of the case is State v Jarcho and is found reported in 36 Abs 645.
In this Jarcho' case the question is so completely discussed tnat nothing more need be said in this case. In the decision Hornbeck, PJ., writing the opinion, points out the mandatory provisions of the section of the Code, and it was the unanimous opinion of the Court that failure to comply with the section was a sufficient ground for the dismissal of the appeal.
Under the rule of stare decisis, the motion of the State to dismiss defendant’s appeal must be sustained.
It is always regrettable to be called upon to dismiss a serious criminal action on a purely procedural question. However, it may be some comfort to counsel for the defendant to state that we have examined the several assignments of errors, the Bill of Exceptions and briefs, and were we passing on the case on the merits we would be unable to find any prejudicial error.
The appeal will be dismissed' and costs adjudged against the appellant.
The cause is remanded for further proceedings according to law.
HORNBECK, PJ. & GEIGER, J., concur.